Restrction to LPA Property And Financial Affairs

[Tribble]

Hi

I'm trying to understand the restriction system in place for Attorneys who are given powers under successful registration of an LPA for Property and Financial Affairs.

I understand that under the Health LPA that it cannot be used until the donor loses either the physical or mental capacity to arrange their own health affairs.

Under the property one though, once registered the Attorneys could immediately take control of all property and finance. As my mother wants to register her children with the Jointly and Severally powers, I understand that putting restrictions can be a bit haphazard and could be rejected if restrictions are not clear or too severe, or even outright incompatible with an LPA's sanctioned powers.

My mother would like to and rightly so, not have the LPA to sanction the powers until such time as she actually officially loses the mental capacity.

My question is how would she word this particular restriction, without possibly having the LPA rejected. Would it be something like:

"The rights given to my Attorneys named in this Lasting Power of Attorney for Property and Financial Affairs should not be used until I lack mental capacity and am diagnosed as such by a medical professional"

Or is their something more simpler or appropriate?

 

[cragmaid]

"The rights given to my Attorneys named in this Lasting Power of Attorney for Property and Financial Affairs should not be used until I lack mental capacity and am diagnosed as such by a medical professional"

This sounds about right to me.

 

[nitram]

The OPG guidance states

An example of a typical, useful, restriction, would be one
which states that your LPA cannot be used after being
registered until you lack mental capacity.

A problem could be satisfying any financial institution that the donor lacks capacity to perform a particular act at a particular time, they may insist on a >>>COP3<<<

 

[mrjelly]

Under the property one though, once registered the Attorneys could immediately take control of all property and finance. As my mother wants to register her children with the Jointly and Severally powers, I understand that putting restrictions can be a bit haphazard and could be rejected if restrictions are not clear or too severe, or even outright incompatible with an LPA's sanctioned powers.

My mother would like to and rightly so, not have the LPA to sanction the powers until such time as she actually officially loses the mental capacity.

With my Dad's LPA there was no restriction and we registered it with the OPG straight away. We did not take it to the bank until about a year later, and they weren't too concerned about whether Dad still had capacity (which was borderline) so we did not tick that box on the bank's form. His name is still on the bank cards and cheque book, so although we are now managing his money he is still able to sign cheques for Xmas and birthday presents.

I guess my point is that "taking control" can be done gradually in practice and still leave some control with the donor. I'm also glad we didn't have the stress of proving Dad had lost capacity, which could have been unpleasant for him.

Also, in your proposed wording of the restriction clause I wondered whether the term "mental capacity" is too restrictive. What if your mother became blind or physically paralysed, she might be assessed as retaining "mental capacity". I would get this done by a solicitor, if you want to put in such a clause.

 

[Stovey]

Maybe wrong section but I have a slight concern. If my husband needs residential care in the future due to his dementia he will be self funding for a year or so. Am I allowed to use a reasonable amount from his accounts (say half of his private pension) to pay the household bills?

tovey


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[Saffie]

Maybe wrong section but I have a slight concern. If my husband needs residential care in the future due to his dementia he will be self funding for a year or so. Am I allowed to use a reasonable amount from his accounts (say half of his private pension) to pay the household bills?tovey

I was my husband's Deputy and I did this as we had a joint account and I left the DDs as they had always been. The OPG said it was fine but the LA refused to accept it and refused to contribute to his nursing home fees until his capital fell to £18,000 rather that the £23,250 when they should have started contributing. They said that as it was mainly my husband's income which had gone into the joint account, I should not have used it. So, from an LPA point of view it's not a problem but, even though he was then self-funding, the LA objected. Incidentally, there was no way the the bills amounted to the £5,250 they deducted either.

 

[Stovey]

Suspected this but find it strange as I know I can keep half private pension when his savings run out. Thank you


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